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2010-01-14

The Path of Democratic Mongolia Must be Clean and Bloodless

Speech by President Tsakhia ELBEGDORJ on Capital Punishment at the State Great Khural

My dear people,
Distinguished Members of the State Great Khural,
Dear guests,

Only yesterday did we solemnly mark the 18th anniversary of Mongolia’s Democratic Constitution. It is the fundamental goal of our Constitution to uphold human rights and liberties, rule of law and justice. The Constitution is the firm guarantee of the democratic choice of the Mongolian people and the source of the consistent exercise of this choice.

Upholding our Constitution, we achieved some notable successes in our course to strengthen human rights, freedom and justice in our society. Yet, much remains to be accomplished.

As is dearly enshrined in the Constitution of Mongolia, the most supreme human right is the right to life. Mongolia strictly prohibits deprivation of life except in cases pursuant to a final judgment rendered by a competent court.

In my capacity of the President of Mongolia, I wish to express from this respectful rostrum my position on the right of a Mongolian citizen to life, and the only cause to deprive him of life – the death penalty. I will speak using only accessible and public information, but not those prohibited by law.

Seven months have passed since I was sworn in as the President of Mongolia. I have to mention that during these seven months, no death penalty was carried out. The decision whether to accept or deny a request to commute a death sentence rests ultimately with the Head of State. At the moment, when the decision whether to spare a precious human life hung in the balance, at the time when the tip of my pen was poised to render my decision, I was faced with a need to make a crucial decision within my full powers.

There could be a multitude of reasons and varying circumstances and settings for committing a crime that carries a death penalty. Yet the guiding principle for the Head of State on whether to approve a death penalty must be single. That single principle is to pardon the offender. As the Head of State of Mongolia, I will remain faithful to this principle because it guarantees and safeguards the value of human life.

I believe, I must cite the reasons for my decision.

Reason One: Pardoning a life does not mean pardoning the penalty. In case the President of Mongolia pardons an offender who has been sentenced to death, the offender is prescribed a penalty of 30 years imprisonment. According to the available official statistics, not a single convict has ever survived this term. This means that offenders sentenced to death who have been pardoned from the death penalty have either died in prison or are still in prison; none of them escaped detention. In other words, Mongolian law does make sure that, provided the sentence is fair, the prisoner ends his life in prison for a crime he committed.

Pardoned offenders in detention die either due to illness or they commit a suicide. As of today, there are 2 convicts with death penalty who, having spent 15 years in the prison of strict regime, are now enduring punishment in a prison of a less strict regime. Others are undergoing sentence in the prison of strongest regime.

Reason Two: The punishment for serious and cruel felonies must be severe. However, capital punishment cannot fully assure that this happens. Everything is over with the execution of the sentence – it’s final, it’s irreparable. However, what if a mistake was made when imposing a sentence, what if the State deprived its innocent citizen of life because of a miscarriage of justice in court proceedings; what if a lighter punishment was to be imposed for the crime committed. These questions remain unanswered.

Moreover, I do not exclude a possibility whereby the execution of a death sentence, might circumvent some organized crimes from being investigated and tried. A death penalty is not serving as a fair punishment either for a person being executed or a person who should not be punished with it. So the issues of justice and injustice, avoiding or enduring the sentence, the intentional and unintentional nature of crimes are a source of serious concern. Let me cite some examples.

In Bayanzurkh district of the capital city five citizens of Mongolia suspected of murder, were detained for 207-1252 days. A court imposed the death penalty on four of the five suspects. However, the court of the last resort exonerated the convicts and closed the alleged murder case. One of the five citizens died while in detention due to tuberculosis. If the court of appeals had chosen to leave the verdict of the primary court as it was and didn’t spare the lives of the defendants, the Mongolian State would have killed innocent citizens.

Another example – a citizen was under investigation for 6 years 8 months and 23 days. During this period a prosecutor filed charges six times and the court sentenced him to death three times. At the court of the last resort, the case was closed upon adjudication and the citizen exonerated.

Amnesty International Mongolia reports, upon concrete facts, that one of three death penalties awarded at courts of different levels are eventually invalidated or changed. You do all very well understand that the Mongolian State should not make such mistakes on the issue of life and death for its citizens. Yet, this is the reality.

Reason Three: There are instances where the death penalty was imposed on an innocent individual instead of the actual offender. There are also cases where the death penalty was used as a means of for furthering the narrow interests of those closer to power and those who are able to influence people in power. Mongolians, too, were not immune to these bitter experiences. For decades we’ve tried, but have not yet completed rehabilitating the victims of past political purges. Mongolia ranks shamefully high in the number of repressed per capital.

According to our Criminal Code, a death penalty – shooting a person dead – is not dangerous for a criminal, but dangerous for a person who did not commit a crime. A death penalty is imposed to men between 18 to 60 years of age. We haven’t closed the door to risks of imposing death penalty to any person aged between 18 and 60, who did not commit a crime or who could have been given a lighter punishment. Mongolians have suffered enough from the death sentence option.

History reveals these facts: Between October 1937 to April 1939, in just 16 months, by 51 sessions of the Special Full-Power Committee, which was then established in place of courts, 20474 Mongolian citizens were repressed and sentenced to death. At just one session, a mass death sentence for 1228 people was issued. Facts read that there were 8 women among those repressed.

Many Mongols believe that foreigners did lend a hand in these purges. Retained death penalty may also lead to situations when it is used not only by domestic, but external forces. Majority of repressed people were those who were sentenced to death in the prime of their life.

Obviously the political and legal settings of those times are incomparable with those of today. Tremendous changes have taken place. However, the nature of death penalty remains. It is the deprivation of life on behalf of the State. That hasn’t changed. Some 67% of the Mongolian citizens, sentenced to death, are young men in their 20s to 40s. And most of them happen to have committed a crime for the first time.

Reason Four: A state-sanctioned execution is not a punishment worth praising. It is a punishment of the highest and most serious nature which degrades a human dignity.

A death penalty involves an offender on one side, and a victim on the other. It leaves families and kin with pain, hurt, and resentment. The victims of a felony often demand “an eye for an eye, a tooth for a tooth”. Even then issues are not exhausted. Some victims just wish they become the last victims of such a crime. And I express my condolences and beg a pardon from those left orphaned, left hurt.

There are mistakes we just can’t afford to make. There are mistakes which can be prevented only by closing the doors. The death penalty is one. Without fully abolishing it, we cannot completely do away with miscarriages of justice surrounding this form of penalty. Only when the death penalty is abolished, shall we be able to genuinely enhance the value of human life and human rights and create conditions to safeguard them. The responsibility of people and organizations involved in making penalty decisions are heightened as well.

One of the intrinsic features of a human being is his or her want for justice. There goes a saying, “a living dog is better than a dead lion”. Even if unjustly judged, those alive are able to have the truth reinstated.

Mongols view that a human life is more precious than all the wealth that the earth can carry. And it is precisely because of this view that we describe a human life as a “golden life”. None of the known human societies have fully secured the guarantees to prevent humans from killing one another. Yet, the State does have the possibility to stop depriving its citizens of their lives. None of the abolitionist countries have repealed death penalty under the pressure of their peoples. But the number of countries whose governments have abolished the application of this punishment grows year by year.

It may not be so soon that our blue planet Earth enjoys the guarantees against humans killing humans. But I believe that one day all countries of the world will come to stop killing their citizens on behalf of states and governments. And so Mongolia, even belatedly, even after many other countries, should abandon death penalty.

Reason Five: Mongolia is a member of the one global family. The United Nations does not support the imposition of the death penalty. It has constantly been calling its member States for abolition of the death penalty. And it does make decisions. The United Nations regularly reports to the international community on developments and international trends in the use of the death penalty, on progress achieved and retreats observed.

Generally countries are classified as either fully abolitionist, countries which have declared a moratorium on execution, and countries maintaining the punishment.

Of the 42 countries of Europe, 40 have abandoned capital punishment. And one country established a moratorium on execution of the penalty. In other words, Europe is 98% abolitionist.

Of 43 countries of Africa, 18 countries have fully abolished the death penalty. Another 11 countries have declared suspension on the use of the punishment. That makes Africa 67.5% abolitionist and opposed to the death penalty.

Fourteen out of 18 Latin American countries made their region 78% abolitionist by repealing capital punishment. In Asia, 17 out of its 46 countries abolished capital punishment, and one country suspended the use of the penalty. Asia, being the home to the most number of countries, is 40% abolitionist.

The number of countries in our continent fully abandoning capital punishment and declaring moratoriums is on an ascending trend. The “STAN” countries which often are criticized for infringements upon human rights and democracy have achieved a notable progress in repealing capital punishment. For instance, Kazakhstan, Kyrgyzstan, Turkmenistan and Uzbekistan – all four of them - have abolished capital punishment. In addition, Tajikistan, announced a moratorium on execution of death penalty.

Every country has its own road to go. So does Mongolia. We will make our own path. Mongolians can carefully observe whether action matches words. If we truly have chosen to uphold human rights and freedom, and have declared this choice, we must spare no effort to assure that human rights and freedoms are in fact exercised in this country. Just like accomplishments, or failures are assessed against criteria, our efforts to safeguard human rights and freedom must also have a criterion to be checked against. And this dear criterion is full and complete exercise of human rights and freedoms. Therefore, the State of Mongolia is to revisit its capital punishment policy, although belatedly as the overwhelming majority of the countries of the world have already chosen to abandon capital punishment. And we must join their path. The road democratic Mongolia has to take ought to be clean and bloodless.

Reason Six: A State that cannot guarantee to pardon the life of its innocent citizens cannot enjoy a moral right to tell its people “Trust Your State, Have Faith In the Government”. As the Head of State of a country that maintains the death penalty, I cannot pronounce these mighty words.

I want to be a President who can tell its citizens: “I will not deprive you of your life under any circumstances, knowingly, on behalf of the State”.

A moral right cannot be measured -- not in meters, or liters, or ounces. It’s just a matter of fact – a right does exist, or it does not. Period. And this right does not depend on who is the Head of State, or on who the Mongolian state decision makers happen to be. It is a matter of the ability of the State of Mongolia to state, to tell our people: “In order to prevent shooting you, dear person, one day, we are pardoning the life of the offender under a sentence of death and replacing the penalty with a 30-year sentence to prison”.

It is not the fault of the people of Mongolia that Mongolia maintains the death penalty. And it is not the fault of our judiciary to practice this punishment. Our judges have endeavored to render just judgments and have been working to repair those decisions deemed unjust. Yet, I cannot firmly say, no mistakes have been made here. Similarly, I cannot say, no mistakes will be made. The price we pay for mistakes in delivering the truth is measured in human lives. Humans work in courts, judiciaries. After all, no human being is alien to mistakes.

In any country, it is the authority of the State to change the practice of capital punishment. If this punishment does exist, the guilt should rest with the politicians, it is the guilt, the fault of us, the Mongolian decision makers. It is not easy for me, as President, as an elected official, to raise the death penalty issue. I believe, the fate of a politician shouldn’t be easy. Who else, if not us, the politicians, would raise difficult issues, would wrestle with difficulties with our bare hands?

Politicians, when tackling an issue to resolve, try to take into account social psychology. The State should initiate, should enlighten, should set examples, should lead on and should resolve the issue of capital punishment. Our Mongolian State is a state of a dear tradition and history of mercy and forgiveness. It was only the State of Mongolia which enshrined the merciful and dignified policy of forgiving its citizens his 9 blunders. But what we do with vengeance which sprouts in human mind? What to do with violence in the society? The profound wisdom of our ancestors teaches us that respect for humanity is to persevere in the heart and mind of the State.

We do have a record, a bright record in our most recent history as well. On August 5, 1953, the Presidium of the People’s Great Khural adopted Decree #93 which resolved:”…to abandon the capital punishment, enforced by effective Laws of the Mongolian People’s Republic”. However, in 10 months, due to certain reasons, it retreated from its decision. There are few countries which reintroduced capital punishment. Since 1985 over 50 countries abolished capital punishment. And the records show that only 4 of them retreated from their decisions.

Any community demands from its State a severe punishment for felons and criminals. The risk of making a bad decision under the anger of people increases. Therefore, flexibility is to be provided for the punishment policy to be reviewed as the decisions have to be stable and must endure the tests of time. It is not accidental to change the capital punishment, when decreeing a commutation, to a 30-year imprisonment. It is not wrong to review a complicated case and punish a felon with a lengthy imprisonment.

Reason Seven: Mongolia does have all the difficulties and challenges that a democratic country faces. And we do have the capacity to resolve them. My country is the inspiring role model of freedom in the entire region. But there is a blemish on the shiny name of Mongolia. This black spot is capital punishment which degrades to the supreme human right to life.

As the President of Mongolia, I sent a New Year Greetings message to the mobile phones to my people, to youth and elders, to men and women, on the first day of the New Year. I tried in my message to tell our people that they can forge the Good Name of Mongolia.

If Mongolia declares a moratorium on the execution of capital punishment, and eventually, becomes a country free of the death penalty, Mongolia’s Good Name and Fame will further be enhanced. At home, we may disagree and argue about the rightness of the execution moratorium and abolition. Yet, our Good Name and Solid Fame will be embraced by the world. As the Head of State of Mongolia I commit myself to ideas and initiatives to consolidate Mongolia’s integrity and honor. I appeal to you, the distinguished Members of the Parliament and Government, my dear citizens, the entire Mongolian people, to join me in the march.

As of today, Mongolia de jure maintains capital punishment. De facto, we refrain from practicing capital punishment and replace the death penalty with a penalty of 30-year imprisonment. Two clarifications need to be made here.

First, this policy is practiced when a convict with a death penalty appeals to the President for pardon. Since I assumed Presidency, there wasn’t a single convict with death penalty who didn’t appeal to me for pardon. In fact, it’s very rare for a death-sentenced convict not to ask for a mercy. The second note, 2009 was a year when Mongolia held no execution at all. The reason is I pardoned the convicts on the death row. And in future, those on the death row will be pardoned from death to imprisonment.

On the other hand, today, as the President of Mongolia, I declare to our Parliament, to my people, and to the international community that the change made in Mongolia’s capital punishment in 2009 will continue. From today on Mongolia is a country which suspends the execution of capital punishment, and becomes a country which announces a moratorium on execution of the death penalty. Mongolia will further aim to become a fully abolitionist country and shall conform our laws and legislation to this end.

This policy, I am convinced, is consistent with the historic choice our people made 20 years ago, and with the path and aspiration of Mongolia to safeguard human rights and democracy. From tomorrow, from being a country depriving her citizens of life on behalf of the State, Mongolia will come to be a country that doesn’t practice executions, and instead, imprisons its convicts for a long-term. And, understandably, from tomorrow on, the struggle to abolish capital punishment as I describe it now, will not be easy. However, as the Head of State of Mongolia, I have zero intention to retreat from the course I start because this is a right, pure and just goal.

Mr. Chairman of the State Great Khural, dear Members of the State Great Khural, I am about to reach the end of my speech. But I do have one more reason to state and two special notes to make. Please exert patience to listen to them.

Reason Eight: One of the justifications for maintaining capital punishment has been the view that it deters criminality. Not a single survey produced to date has proven that abolition of capital punishment leads either to an increase, or opposite, to a shrinkage in criminality. However, some argue that keeping the death sentence leads to an increase in serious felonies. These may be related to those as felons may conclude that they have nothing more to lose having already committed a death sentence crime.

We cannot repair a death with a death. A water drop hollows out a stone. Some fear death, but the prospect of a death makes others crueler. Criminals fear justice, fear just judgment. A just judgment in addition to being fitting to the felony is also about the truth established and reinstituted.

Let me cite an example from afar: some sources indicate that in the US, in states where capital punishment is maintained, the rate of criminality and the extent of cruelty is higher than in those states that have abandoned the punishment. However, the US cannot set a model for us in capital punishment. Whole 4 decades have elapsed since the UK abandoned the death penalty. Over this period, over 20 attempts were made to reintroduce the punishment in that country. The policy makers in the UK have, however, sought to unwaveringly protect the integrity of their State and remained faithful to their 40-year old choice. It decided to abolish capital punishment once and for all, not to revoke even in times of war.

There are quite a few distortions in Mongolia’s punishment policy that deviate from common international practices. An offender charged with a death penalty has 10 days to appeal to the court of higher jurisprudence, and has merely 15 days for appeal for a pardon. International organizations take the view that the minimum term of appeal should be no shorter than 3 years. In some developed countries, where it is possible to include the DNA test into evidences, there are occasions when those in detention have been exonerated and released.

The Mongolian Criminal Code lists many crimes as death penalty offences. Professional and official institutions list them differently. In other words, the Criminal Code lists specific provisions and terms, that can be interpreted in varying ways. The Mongolian Criminal Code names 7 offences for which the death penalty is imposed. However, these 7 offences are broken down to 59 crimes, according to a list made by an official source. Fifty nine crimes for which the death penalty can be applied. The possibility to issue a perfect, thoroughly fair judgment on such a wide premise of offences is extremely slim. Therefore, abolition of the death penalty is becoming a common practice.

Mongolia is also not immune to practices that are common for countries maintaining capital punishment. However, there are extremely grave, shameful practices that exist only in Mongolia, and already known to the rest of the world. I have just stated eight reasons for abolishing the death penalty. The fact that I am about to share is not just a reason, but it is a misery of Mongolia, it is about the humiliating nature of the practice in Mongolia. These are special situations that need to be immediately rectified.

SPECIAL SITUATION ONE: If someone is sentenced to death, it becomes practically impossible to monitor the person’s fate from outside. An international human rights organization writes time and again in its annual reports that of all countries with capital punishment there are four that are of greatest concern. One of those four is Mongolia. International organizations note that some of the four countries record improvement in the control of the capital punishment, some review the application of the punishment, and even introduce humane methods of execution.

As far as Mongolia is concerned, we lack information on executions; if there are records, they are in the form of arbitrary observations. Mongolia is the worst record keeper on the matter. This is our reality. To make this speech today before Parliament, I received information from relevant organizations and officials. There were discrepancies in those data on capital punishment. This is one of the issues that worries me gravely.

As is prescribed by law, execution procedures, the act itself, and execution documents are kept in strict confidentiality. As we all know, the State is obliged to maintain justice in society. Justice cannot be practiced in an environment of hidden information, without transparency. Justice is about humans, it’s about human rights. There is no justice without a human who this very justice is to serve.

After all, even a felon with a death penalty is entitled to certain rights, and simple human respect. If a citizen of Mongolia receives a death sentence, and if the President doesn’t grant him a pardon, there is virtually no room for national and international organizations to exercise any control over the life of the offender and seek information. These bars are equally tightly placed in front of the offender’s advocate and family. State secrecy on execution of death penalty is a blind and dark hole, just like hell.

We Mongols have embodied in our Constitution, which anniversary we marked yesterday, our will to build a humane, democratic society, which can close this black hole, at least, shed some light on it. Why ought we to care? It’s because if the hole, this bottomless pit, persists, it can soak up everything we value and cherish in our society. To seal the black hole, I decided, it would be right, first, to keep the death-sentenced alive and punish him severely with a more appropriate penalty.

I, the President of the country, as well, lack the information on citizens executed. The most I can do is just inquire. At best, I listen to a report. Your President as well, is not aware, does not see what is unheard and unseen by someone else. If, as is practiced elsewhere, a representative of the victim, at least his advocate attends the process as an observer, a source of external monitoring, a person, this very advocate will know of what has just happened.

There are many rumors about the application of capital punishment. I don’t doubt, the punishment is executed. But because it is secret, there are things that I do not know. A secret is a secret. What is kept in utmost secrecy becomes the source of utmost gossip. And as such, arouses, I would say, legitimate suspicions. This leads me to the second special situation, which I elaborate further.

SPECIAL SITUATION TWO: After the sentence is executed, issues arise about the body of the executed person. This is a serious issue. The body is not given to the family of the executed. While the State imposes its utmost and gravest punishment to the offender, it must not punish the dead body of the offender and his family.

Mongolia lacks monitoring over such bodies, not speaking about a monitoring over a death-sentenced offender. It’s not a secret that the last will of those who attempted a suicide or did commit one while on death-row is mainly a plea to give his dead body to his family and the will to be buried by his family. A newspaper recently carried an article about this issue. There were incidences when a buried body of an executed offender would surface in the floods and cause consternation.

Mongols do respect the afterlife of a person. I was shocked to learn during briefings and reports on capital punishment and corpses of executed that some of the provisions of the strictly confidential decrees of the President are not implemented, or cannot be implemented at all. Clearly, we cannot let this continue.

An official was assigned and got acquainted with the state of affairs around the death penalty and its execution. The findings and observations were reported to me. I also met with certain official people who reported attending executions. We exchanged views. While listening to the reports and findings, my conviction to repeal execution grew stronger. And the relevant officials I met also agreed that Mongolia has to end the current practice of execution.

Criminals do conceal their horrendous acts. But the State doesn’t need to fully keep in secret the fate of a criminal. There are no secrets forever. One day Mongolian society will talk about the issue. The earlier we talk, the earlier we will be able to resolve the issue. A lot of work must be done in the areas I have addressed in this speech – change our laws and rules, scrutinize and streamline the facts and data, a lot of things to check, to confirm and also, there is a need to invite more external control. We must act and immediately.

This is not the first time I am appealing to Mongolia’s law-making authority to abolish capital punishment. Nineteen years ago, when I was one of the deputees (members) of the People’s Great Khural, elected by the first ever democratic election in Mongolia, I expressed my views during the discussions of the draft of our Constitution. Back then we held two-day discussions and debates on issues relating to the abolition of capital punishment.

I recall citing eight grounds for abolition of the death penalty when I shared with my position during those discussions. Today, I am addressing the Parliament with eight groups of reasons and two special circumstances to consider. Today, when reminding the words I pronounced 19 years ago, I do not mean to flatter myself, but wish to note that back 19 years ago, there were many deputees – representatives of the people – who supported abolition of death penalty.

Mongols have fought through many decades and centuries to secure our freedom, independence and sovereignty. In 2011 we will mark the centenary of Mongolia’s restoration of our independence and freedom. Freedom and independence of any country is measured by the freedoms and liberties, and self-sustaining power of its individual citizens. I ask my people, the people of Mongolia to make a present to ourselves on this auspicious centennial of our country – let us become a country where a citizen is not deprived of life by the State, and more precisely, as a democratic country, let us be a people where a citizen is not killed by another citizen.

Mongolia is a dignified country, both in terms of the legacies of our history, and in the way we practice freedom. And our citizens are dignified people. Therefore, I ask Mongolia to put behind us this death penalty which degrades our dignity to death.

A Mongol man, a Mongol fate is not a fate to be degraded by the death penalty. Mongols are people of celestial destiny and noble fortune. Mongols, my dear people, let us live this life with dignity, with integrity, with Good Name and Solid Fame.